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Gutierrez-Gordillo v. Tomo Hibachi Restaurant and Lounge, L.L.C.

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 26, 2018

LORENZO GUTIERREZ-GORDILLO, PLAINTIFF-APPELLANT
v.
TOMO HIBACHI RESTAURANT AND LOUNGE, L.L.C., ET AL., DEFENDANTS/THIRD-PARTY, DEFENDANTS-APPELLEES

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-17-877549

          ATTORNEYS FOR APPELLANTS, Patrick J. Milligan, Patrick J. Milligan Co., L.P.A., David J. Pasz David J. Pasz Co., L.P.A.

          ATTORNEY FOR APPELLEES Komlavi Atsou Cavitch, Familo & Durkin Co., L.P.A.

          BEFORE: Stewart, J., Kilbane, P.J., and Jones, J.

          JOURNAL ENTRY AND OPINION

          MELODY J. STEWART, J.

         {¶1} Plaintiff-appellant Lorenzo Gutierrez-Gordillo, defendants/cross-appellees Valentina and Velimir Lucic, 1293 W. 9th, L.L.C., and defendant/cross-plaintiff appellant Cindy Dong, operated a restaurant incorporated as Tomo Hibachi Restaurant and Lounge, L.L.C. Claiming a 15 percent ownership interest in the restaurant, Gutierrez-Gordillo maintained that he had not received any distributions or compensation from Tomo Hibachi, nor had he been given access to the restaurant's financial statements. He filed this action seeking dissolution of Tomo Hibachi and asserted claims for an accounting, breach of contract, breach of fiduciary duty, and unjust enrichment.

         {¶2} Dong answered the complaint and denied Gutierrez-Gordillo's allegation that he was a member of Tomo Hibachi. She also filed a cross-claim against the Lucics, seeking a dissolution of the business on grounds that she had been forced out of the business by the Lucics. She alleged that during the formation phase of the business, the Lucics misrepresented their financial position - she claimed that their investment capital derived from multiple schemes to defraud the National Credit Union Administration Board.

         {¶3} The Lucics answered and filed a motion to stay proceedings against Dong and refer the matter to arbitration consistent with the terms of an arbitration clause in Section 7.04 of the Tomo Hibachi operating agreement. Dong filed an opposing brief claiming that the Lucics waived their rights to arbitration, but argued in the alternative that if the court decided to stay the case and refer it to arbitration, Gutierrez-Gordillo's claims should also be referred to arbitration because he raised the same claim for judicial dissolution of the business. Gutierrez-Gordillo gave notice to the court that he agreed with Dong and desired to join her opposition to the motion to stay and/or order arbitration for all parties in the action.

          {¶4} Finding that Dong and the Lucics had agreed to arbitration in the operating agreement, the court ordered them to submit the matter to arbitration. With respect to Gutierrez-Gordillo, the court held that he "was not a party to the operating agreement[.]" Nevertheless, the court stayed all proceedings on Gutierrez-Gordillo's complaint pending the outcome of arbitration between Dong and the Lucics.

         {¶5} Dong and Gutierrez-Gordillo have filed a joint appeal. Their sole assignment of error complains that the court erred by finding that Gutierrez-Gordillo was not a party to the Tomo Hibachi operating agreement and, thus, not bound by the arbitration clause.

         {¶6} The Lucics argue that the issue of whether they agreed to arbitrate disputes with Gutierrez-Gordillo is an initial question for the court. They maintain that Gutierrez-Gordillo was not a member of Tomo Hibachi because they never recognized him as such, a fact that they deem proven by Gutierrez-Gordillo's allegation in the complaint that they had not treated him as a full member of Tomo Hibachi. They maintain that the operating agreement was signed only by themselves and Dong, proving that Gutierrez-Gordillo is not a member of Tomo Hibachi so they have no contractual obligation to engage in arbitration with him.

         {¶7} None of the parties dispute that the claims made by Gutierrez-Gordillo fall within the scope of the arbitration agreement; the issue is whether Gutierrez-Gordillo is a party to the operating agreement and thus bound to arbitrate his dispute against the Lucics. This is a question of law that we consider de novo. Zelina v. Hillyer, 165 Ohio App.3d 255, 2005-Ohio-5803, 846 N.E.2d 68, ¶ 12 (9th Dist).

          {¶8} Attached as Exhibit B to the complaint is an addendum to the Tomo Hibachi operating agreement. It amends Section 3.01 of the operating agreement to state: "By approval of all members the following is hereby admitted as an additional member: Lorenzo Gutierrez Gordillo. The addendum further amends Section 4.01, under the heading "additional members" to state:

By agreement of Initial Members and Additional Member, i.e., all members, additional member Lorenzo Gutierrez Gordillo will contribute to the Company for his membership interest the sum of $140, 000.00 as follows: $120, 000.00 upon execution of this addendum/agreement and $20, 000.00 ...

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